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Friday, October 7, 2016

Section 302 read with Section 149 of the Indian Penal Code and convicted by the trial court, have approached this Court after their conviction was upheld by the High Cour= Once it is found that these witnesses, who are eye witnesses, were present and they have truthfully narrated the incidence as it happened and their depositions are worth of credence, conviction can be based on their testimonies even if they were related to the deceased. The only requirement, while scrutinising the interested witnesses, is to examine their depositions with greater caution and deeper scrutiny is needed, which exercise has been done by both the courts below. In fact, when the learned counsel for the appellants was confronted with the aforesaid factual and legal position, he could not even provide any answer to the same.- Chowkidar, who was the first informant, was not examined by the prosecution, it would be apt to reproduce the following discussion in the impugned judgment of the High Court, with which we fully agree: “10...It is worth pointing out that in cross examining the IO the defence has not elicited either the number and time of the station diary entry nor the time when the choukidar allegedly gave some information whose substance was entered in some station diary entry. The name of the Choukidar has also not been elicited. This was an extraction or revelation of a fact which had never been put before the material witnesses like the informant and the injured witnesses who had been examined before the IO. Even the limited information given by the IO is cross examination is insufficient and it was not possible for the prosecution to produce the alleged station diary entry whose number, date and time was not elicited from the IO. It was also not possible to examine the Choukidar who had allegedly given the information because his name was also not elicited. The prosecution is thus being blamed for suppressing the contentions of a station diary entry whose details are absolutely vague and missing and the defence never requisitioned any station diary entry to be produced during trial. Further, the IO has stated in the same paragraph that Fardbeyan of the informant is mentioned in the case diary systematically as they took place. This piece of evidence from the IO is sufficient to take away all the force from the submission of the defence that information by Choukidar was the earliest version of the occurrence. In such circumstances, no adverse inference can be drawn against the prosecution on the unacceptable plea of the defence that there was an earlier version of the occurrence which has been suppressed.” We, thus, do not find any merit in this appeal, which is accordingly dismissed.

A.K. SIKRI, J.
Five appellants, who were tried for offence under Section302 read with Section 149 of the Indian Penal Code and convicted by thetrial court, have approached this Court after their conviction was upheldby the High Court as well vide impugned judgment dated September 28, 2007.
During the pendency of this appeal, one of the accused persons, namely
Hiralal Yadav, expired and the appeal qua him stood abated. The validity
of the judgment of the High Court in respect of the remaining four
appellants is the subject matter of this appeal.

To trace out the prosecution case in brief, it may be mentioned that on
November 16, 1991, at about 9:00 am, Ajodhaya Yadav, armed with a lathi,
and other four appellants armed with bhala, were ploughing a field
belonging to the informant while Kashinath Yadav exhorted others to kill
the informant Ramji Yadav. Hiralal Yadav caused a bleeding injury on the
head of the informant with a bhala. The informant in order to save his
life shouted on which his uncle Ramayan Yadav (deceased), his father
Dharichhan Yadav (PW-1) and his brother Bir Bahadur Yadav (PW-3), came in
order to save him. Hiralal Yadav then caused a bhala injury on the chest
and abdomen of the deceased who fell down and became unconscious. PW-1
also fell down as he was assaulted with bhala by Kashinath Yadav and Kamta
Yadav causing injuries on his abdomen, back of the body and hand. PW-3 was
also assaulted by Ajodhaya Yadav with lathi and also by Bhim Yadav with
bhala on head causing bleeding injury. On the shouts raised by the
informant and his party, Dudhnath Yadav (PW-2) and Jagdish Yadav came and
saved them. Other persons from the village also came and thereafter the
accused persons stopped assaulting and fled away. The reason for the
occurrence was said to be a dispute over the land and litigation in the
past which had resulted in filing of a court case also.

First Information Report (FIR) was registered after recording fardbayan
(Exhibit – 4) and this FIR was proved during trial as Exhibit – 5. This
FIR shows that the police station was situated very close to the place of
occurrence, i.e. about 300 yards on the west. It further shows that
formally Section 302 was not added by the Investigating Officer (PW-9). By
way of correction in the FIR, this provision was added after obtaining
permission for the same from the Court of the Magistrate on November 16,
1991 itself by informing that uncle of the informant, i.e. Ramayan Yadav,
died on way to Bihia Hospital. The Investigating Officer inspected the
place of occurrence; prepared Inquest Report (Exhibit – 3); sent the body
for postmortem examination and obtained postmortem report; recorded the
statement of witnesses, including further statement of the informant; and
submitted charge-sheet for the offence under Section 302 and other
provisions of the IPC. After taking cognizance, the Magistrate committed
the case to the Court of Sessions where charges were framed for various
offences, including Section 302 IPC. The appellants pleaded 'Not Guilty'
to the charges. After the trial, accused persons were found guilty by the
trial court for offence under Section 302 IPC and were awarded imprisonment
for life.

The judgments of the Courts below reflect that the prosecution, in order to
prove its case, examined nine witnesses. PW-1, Dharichhan Yadav, is the
father of the informant. He also sustained injuries and claimed to be an
eye witness to the occurrence, as mentioned in the FIR itself. He has
fully supported the prosecution case. PW-2, Dudhnath Yadav, is the brother
of PW-1, who came on the shouts raised, and has claimed to have seen the
occurrence. PW-3, Bir Bahadur Yadav, is the son of the deceased Ramayan
Yadav. Like PW-1, he is also an injured eye witness to the incident. He
has fully supported the prosecution case. Sonia Devi (PW-4) and Munesari
Devi (PW-5) are mother and wife respectively of the informant. PW-4 has
claimed to have gone to the place of occurrence on hearing the shouts and
also claimed to have seen the occurrence, whereas PW-5 stated that she was
on the roof of her house and from there she saw the entire occurrence as
the place of incident was close to her house. Ramji Yadav (PW-6) is the
informant, who also suffered injuries and as claimed by him in the
fardbayan as well as in his deposition in the Court, he saw the entire
occurrence from beginning till end. Dr. Rajesh Kumar Singh (PW-7) held the
autopsy on the dead body of the deceased. He has proved the postmortem
examination report as Exhibit – 1. According to him, the postmortem
examination was held on November 17, 1991 at 8:00 am. He found the
following eight injuries on the dead body of the deceased:
“(i) Incised wound with clean cut edges 1” x 2/10”x whole thickness of the
pina of right ear.

(ii) Incised wound 1½” x ½” x 2/10” on the upper portion of the right arm.

(iii) Incised wound 1” x 2/10” x 2/10” on the back of the scalp left side.

In his opinion, all the injuries were ante mortem caused by sharp
cutting pointed instruments and the time elapsed since death was within 36
hours of postmortem examination. He found the cause of death to be injury
No. (vii), a penetrating wound 1” x ½” chest cavity deep on the right side
of chest. He has further opined that the injuries could be caused by
bhala. However, injury No. (vi) could be caused by lathi also. The
stomach of the deceased contained undigested food material and the bladder
was empty.
PW-8 examined the injuries of PW-1, PW-3 and PW-6 on November 16, 1991 at
Bihia Block Hospital between 12:30 pm to 1:15 pm. He found six injuries on
the person of PW-1. He found all the injuries simple in nature but injury
No.2 and 3 were penetrating wounds on chest, right side of back and lower
part of right arm above elbow joint. On PW-3, he found two injuries, one
was incised wound over front portion of head 3” x ½” skin deep and the
other was penetrating wound on the right side of abdomen ½” x ¼” x ¾”. The
injuries were found to be simple. On PW-6, the informant, he found three
injuries. One was a lacerated wound on the left side of head ¼” x ¼”x
scalp deep upto bone, the second injury was also lacerated wound on left
side near middle of head 1” x ¼” x 1/6”. The third injury was a swelling
3” x 2” on left buttock. The injuries were simple. Some of the injuries
on PW-1 and PW-3 were by sharp weapons like bhala, but in case of PW-6, the
doctor opined that the injuries were by hard and blunt substance like
lathi. The age of injuries in respect of all the three injured was found
to be within six hours. The injury reports of the three injured were
proved by PW-8 as Exhibits – 2, 2/1 and 2/2 respectively.

The investigation was done by Surajdeo Ram (PW-9), Investigating Officer,
as pointed out earlier. During inspection, he found the place of
occurrence to be a field belongiong to the informant in which potato crop
had already been planted. He found that potato crop marks of three rounds
of ploughing were visible. He also seized blood stained earth from the
place of occurrence. He has stated in his cross-examination that report of
the occurrence was first received by him from Chowkidar and on that basis a
Station Diary Entry was made but he did not record the statement of
Chowkidar. He has admitted that he has written the Case Diary in a
systematic manner, as the events unfolded, and the fardbayan is mentioned
in paragraph 1 of the Case Diary. He has also stated that after the
fardbayan, further statement of the informant was recorded and the place of
occurrence was inspected and only thereafter formal FIR was instituted.
According to his statement in the cross-examination, in respect of the
earlier statements made by PWs 1, 2 and 3 under Section 161 of the Code of
Criminal Procedure, 1973, there was virtually no difference in what they
had stated regarding the occurrence in Court. As far as PW-4 is concerned,
she has deposed that she had not told him in clear terms, in her earlier
statement, as to which of the accused persons were having bhala and who was
ploughing and that Hiralal had assaulted on head with bhala and the
deceased had received injury on head with bhala. She had also not stated
on what part her husband (PW-1) had received injuries by bhala and that the
accused persons fled away on arrival of Jagdish and Dudhnath Yadav. No
contradiction was sought in respect of the statement of PW-5.

Various contentions were raised before the High Court with an endeavour to
find loopholes in the judgment of the trial court regarding conviction of
the appellants. It was argued that the time of offence had not been proved
by the prosecution beyond reasonable doubt because the Doctor had opined,
while conducting the postmortem examination on November 17, 1991 at 8:00
am, that the death of the deceased appeared within 36 hours, whereas
according to the prosecution case, death had taken place within 23 hours.
It was also argued that the nature of injuries found on the deceased and
injured persons did not support the prosecution case. Another submission
was that though the Investigating Officer (PW-9) had admitted in his cross-
examination that information of the occurrence was first given by a
Chowkidar, which was incorporated in his Station Diary Entry as well, FIR
was not registered on the basis of said information and that Chowkidar was
not even produced as a prosecution witness.

All the aforesaid arguments have been rejected by the High Court as without
any substance. It is not necessary to reproduce the discussion of the High
Court on these arguments as before us the learned counsel pressed only last
of the aforesaid arguments, in addition to couple of other submissions.

In the first instance, the learned counsel drew our attention to the FIR
and referred to the following column regarding the place of incident:
|Place of incident & distance|
|from the Police Station & |
|Side |
|2. |
|Villate Tiar, about 300 sq. |
|yds. West from Police |
|Station |
|Circle No. 4 |

It was submitted that when the place of incident was 300 sq. yds.
away, it was impossible for the witnesses to see the occurrence clearly and
identify the accused persons.
This argument appears to be an argument of desperation as
the place of occurrence is shown to be at a distance of 300 sq. yds. from
the Police Station in West direction. It is nowhere stated that those who
were eye witnesses to the incident had seen the occurrence from a distance
of 300 sq. yds. When confronted with this position, the learned counsel
accepted the inaccuracy of his argument.

It was further argued that no independent witnesses were examined in the
present case. However, in the cross-examination or otherwise it has not
even been brought out by the defence that there were other persons at the
scene of occurrence who were independent persons. The learned counsel also
could not point out as to how, in these circumstances, non-examination of
independent persons acted to the prejudice of the appellants.

We have already narrated the deposition of the witnesses in brief. There
are six eye witnesses and three of them are injured eye witnesses, which is
a weighty factor to show the actual presence of these witnesses at the
scene of occurrence. Moreover, the credibility and trustworthiness of all
these eye witnesses could not be shaken by the accused persons. Once it isfound that these witnesses, who are eye witnesses, were present and theyhave truthfully narrated the incidence as it happened and their depositionsare worth of credence, conviction can be based on their testimonies even ifthey were related to the deceased. The only requirement, whilescrutinising the interested witnesses, is to examine their depositions withgreater caution and deeper scrutiny is needed, which exercise has been doneby both the courts below. In fact, when the learned counsel for theappellants was confronted with the aforesaid factual and legal position, hecould not even provide any answer to the same.

Coming to the last submission that Chowkidar, who was the first informant,was not examined by the prosecution, it would be apt to reproduce thefollowing discussion in the impugned judgment of the High Court, with whichwe fully agree:
“10...It is worth pointing out that in cross examining the IO the defencehas not elicited either the number and time of the station diary entry northe time when the choukidar allegedly gave some information whose substancewas entered in some station diary entry. The name of the Choukidar hasalso not been elicited. This was an extraction or revelation of a factwhich had never been put before the material witnesses like the informantand the injured witnesses who had been examined before the IO. Even thelimited information given by the IO is cross examination is insufficientand it was not possible for the prosecution to produce the alleged stationdiary entry whose number, date and time was not elicited from the IO. Itwas also not possible to examine the Choukidar who had allegedly given theinformation because his name was also not elicited. The prosecution isthus being blamed for suppressing the contentions of a station diary entrywhose details are absolutely vague and missing and the defence neverrequisitioned any station diary entry to be produced during trial. Further,the IO has stated in the same paragraph that Fardbeyan of the informant ismentioned in the case diary systematically as they took place. This pieceof evidence from the IO is sufficient to take away all the force from thesubmission of the defence that information by Choukidar was the earliestversion of the occurrence. In such circumstances, no adverse inference canbe drawn against the prosecution on the unacceptable plea of the defencethat there was an earlier version of the occurrence which has beensuppressed.”We, thus, do not find any merit in this appeal, which is accordinglydismissed.